In May, 2008, the South Carolina Supreme Court reversed a 20-year prison sentence on a controversial drug charge. Regina McKnight, an indigent black woman, was sentenced for “homicide by child abuse,” in 2003, and became the first woman to be prosecuted and convicted in the United States for giving birth to a stillborn baby. McKnight had no prior convictions, but her drug use during pregnancy violated a recently enacted South Carolina fetal drug law (FDL).
Prosecutors never proved that McKnight’s drug use actually caused the miscarriage. In fact, she was arrested after seeking help at a local hospital. The State simply proved that she miscarried. South Carolina justified its interference with the pregnancy and subsequent prosecution based on an interest to protect fetuses from risks associated with drug exposure such as low birth weight.
Most states that pursue these types of prosecutions ignore the fact that miscarriages and stillbirths are caused by any number of factors ranging from assisted reproductive technology (ART) and alcohol abuse to obesity and secondhand smoke. Recent studies provide compelling evidence that even a father’s age influences whether a baby might be born alive or dead.
By comparison, recent high-tech, high-publicity births, including that of the Stacey Carey of Pennsylvania, who earlier this year gave birth to premature and severely underweight sextuplets with the aid of 60 hospital staff; Nadya Suleman, a California woman, who gave birth to eight babies; or the case of Brianna Morrison, a Minnesota woman who birthed six children in 2007, after using reproductive drugs, offer an interesting contrast. Some scholars suggest that it reveals how race and class still matter in the birthing.
The Minnesota sextuplets were in critical condition after birth, subject to a battery of medical tests, treatments, and living with the aid of respirators and feeding tubes. When doctors had suggested that the couple selectively reduce, they refused. Six weeks after their births, all but one had died. The Careys’ six children were born at 27 weeks, weighing between 1 and 2 pounds, remaining in intensive care for months.
Despite the sometimes tragic results, multiple births achieved through scientific intervention are often marked by public celebration, biblical references, and press conferences. Pundits echo family members referring to the pregnancies and births as “miracles.” In some cases the parents become celebrities, like Kate and Jon Gosselin, who worked their fame into television shows, covers of magazines, and sex scandals.
But too often overlooked in multiple birth ART pregnancies are serious birth-weight issues and health problems ranging from mild to severe, including hearing impairment, visual problems, cognitive delays, chronic lung disease, mental retardation, and high incidences of cerebral palsy—if the children survive. According to the CDC, ART increases the risk of conceiving a baby with certain serious health conditions up to four fold.
Ironically, given the risks involved, there is virtually no regulation or federal oversight in this area of reproductive medicine. Doctors willing to implant as many embryos as a patient desires, despite risks to the mother and babies (if they survive), receive no reprimand. While the American Society for Reproductive Medicine recommends that no more than three embryos be implanted at one time, they are an advisory group with no legal authority.
The financial costs associated with multiple-order births are also worth thinking about. Families using ART may be unprepared for the significant financial costs associated with the deliveries and subsequent, prolonged neonatical care. More than 40 doctors were called upon to help deliver Ms. Suleman’s octuplets. Who pays those costs?
The difference between McKnight’s traumatic story and that of other moms like Ms. Morrison, Ms. Carey, Ms. Suleman, and so many others who used ART and birthed children at high mortality risk, might seem obvious at a glance: one woman arrested and incarcerated because she broke the law, while the other women were simply desperate to become mothers, and what’s so bad about that?
Ideally, the maternity ward should be off limits to the state. Compulsory sterilizations during the first half of the last century are a chilling reminder about too much state interference. Nevertheless, there is a persistent question that arises from the juxtaposition of these stories, a question that relates to power, privilege, race, and class. If what states care about is ensuring the health of fetuses and promoting their development to birth, then why focus only on women like McKnight? Multiple birth ART babies are eight times more likely in Ms. McKnight’s home state (South Carolina) to be born low birthweight, and low birthweight babies are 40 times more likely to die during the first few months of life.
There should be a strong presumption against using the state to veto personal choice during pregnancy. But there are limits, especially when the lives of others are so deeply affected. Criminal law is not the answer, but neither are selective ignorance and worse glorifying pregnancies that pose serious risks to the developing fetuses and making celebrities out of their parents.